Are the scales of justice lopsided?

Devinder Pal Singh Bhullar, sentenced to death by the Supreme Court of India in 2002 for conceiving ‘diabolical’ plans and committing ‘dastardly acts’ of terrorism, seems an unlikely candidate for psychotic or even clinical depression. Whether we believe the psychiatrists at the Institute of Human Behaviour and Allied Sciences (IHBAS) that he’s not faking his hallucinations and incoherence to cheat the State-sponsored hangman, his unwillingness to live is clear and it extends beyond his attempt to hang himself in the IHBAS bathroom. He tried to end his life several times in Tihar; but for the prison authorities he might have created the same outrage as the late Ram Singh, who recently defiantly resigned (unless the allegations about his murder are substantiated) before he was fired by noosing up his sleeping mat.

More controversially, according to the police report — which was the sole basis of discerning Bhullar’s culpability — he tried to swallow a (curiously missing) cyanide capsule prior to standing trial. As the police mooted this story of the elusive capsule to establish guilt, it appears that the attempt to commit suicide — an offence under the Indian Penal Code — could not possibly be a factor to determine competency when he stood for trial.

While we await the results of the medical board constituted at the behest of the Delhi home department to investigate Bhullar’s mental health, it is difficult to ignore that it is political pressure from Punjab and the Shiromani Akali Dal which has directed the attention of state authorities to the connection between law and mental illness, rather than the justice system itself. In the recent Supreme Court dismissal of Bhullar’s mercy petition, Justice Singhvi observes: “[Per the Paras Ram case], special reasons necessary for imposing death penalty must relate not to the crime as such but the criminal. With great respect, we find ourselves unable to agree with this enunciation...In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator.” In other words, a psychosocial assessment of the criminal at the time of the offence and thereafter becomes irrelevant for deciding upon a sentence.

Thus, Bhullar’s condition during the 18 years of detention, or even an inquiry into the possible effects of detention are precluded by allowing the crime itself to serve as a complete index of his character. It comes as no surprise, therefore, that the findings of IHBAS regarding Bhullar’s depression are disregarded in the Supreme Court’s dismissal of his final plea for mercy.

Even in places where the death penalty is prevalent, the state of mind of the accused at the time of trial is important to ensure that he is capable of defending himself. Though the exemptions to capital punishment carved out by the American Supreme Court based on defendants’ mental health have received strong national and international critique for being too narrow, the fact that the court engaged in such an evaluation in a country which has executed over a thousand people since 1976 is worth noting. Further, the court has banned the execution of mentally incompetent convicts regardless of their mental condition at the time of the offence.

Given ‘the conditions of India’ which the Supreme Court professes to understand, the legal process may have chosen to be free of scientific techniques which are either dubious or may not adequately capture the ‘facts and circumstances’ of a case. However, a sessions court in Maharashtra has the distinction of being the first court in the world to convict a defendant on the basis of a brain scan. The National Institute of Mental Health and Neurosciences issued a statement describing this Brain Electrical Oscillations Signature test unscientific and unsuitable for use against criminal defendants, based on which an appeal has been filed. Dennis Paterson, an oft-cited legal scholar, argues that notwithstanding the advances in neuroscience technology for lie-detection, neural activity cannot provide a causal account of behaviour.

As it appears that unverified psychological evidence has been used for establishing guilt, and a more time-tested universal process of psychiatric inquiry ignored for the purpose of commuting a death sentence, it is tempting to infer that India’s criminal justice system selectively chooses to ignore psychological evidence to further political will. The current political interest in the depressed-suicidal-hallucinating-incoherent Bhullar in addition to the more familiar interest in the diabolical-dastardly-terrorist Bhullar may bring into question whether some forms of justice are privileged over others, and whether entrenched attitudes towards stigmatised mental illnesses affects institutional clemency.

Suryapratim Roy is a lawyer and researcher in behavioural law & economics at the Faculty of Law, University of Groningen, The NetherlandsThe views expressed by the author are personal